GPSOLO July/August 2009

Animal Custody Cases

By Christine Garcia

When clients come to me with a pet custody matter, I always tell them that possession is 90 percent of the fight. Of course, if they had simply held tight to their rightful possession of an animal, my caseload would be significantly lighter. The problems occur when individuals are not familiar with their rights and waive possessory or “ownership” interests in their animals. When another person (e.g., a spouse) or entity (e.g., the government) takes possession of the animal, it is much more difficult to regain and win rightful ownership and control through the court system. This is true for the two most common custody disputes: dangerous dog hearings and custody battles between private individuals.

Dangerous Dog Hearings

Frequently my cases begin with a telephone call from a stressed dog guardian who recently had a visit from local animal care and control officers. The caller will tell me that the officers came to her home and took away her dog “temporarily,” and only later she received notice the animal would be put to death.

Usually in such cases the animal care and control officers are acting on a telephone call from a neighbor or passerby who alleged that the dog in question either lunged, looked aggressive, or bit the individual. Such telephone tips or in–person complaints are generally not signed. Officers who encounter impediments from the animal’s guardian often threaten an arrest for obstruction. Some officers tell the guardian that the dog will be returned in ten days. Through either placation or duress, the guardian of the dog hands over the pet and then shortly there–after receives notice of the animal’s impending death.

Fourth Amendment rights. People are not aware that animals are still considered property. Although many cities, such as San Francisco, have adopted legislation redefining the owner of an animal as a “guardian,” the federal government and the states still recognize animals as property. But all is not lost with this designation. Because the government perceives animals as property, the rights associated with Fourth Amendment searches and seizures apply. In Fuller v. Vines (36 F.3d 68 (9th Cir. 1994)), the Fuller family of Richmond, California, alleged that police officers’ wrongful shooting of their dog constituted a Fourth Amendment seizure. The Ninth Circuit Court of Appeals agreed, ruling that a dog is an “effect” or “property” and that the destruction of property is a “meaningful interference” constituting a seizure under the Fourth Amendment. There are now analogous cases in almost every circuit in the country.

I advise individuals to assert their Fourth Amendment rights when an officer comes knocking at their door. There is no reason why an animal guardian shouldn’t demand to see a court order or warrant before allowing an improper seizure. Nonetheless, many clients waive their custodial rights and hand over the animal. It is important for people to demand a probable cause hearing prior to this detention of the animal. If the government is allowed to take your client’s dog without protest, getting the animal back will require a legal battle with the government for custody rights, which can take anywhere from a few days to more than a year—during which time the dog waits, impounded.

Backyard quarantines. In California it is the common practice and policy that domestic dogs or cats that bite humans be placed in quarantine and watched for signs of rabies for ten days following the exposure date, regardless of the animal’s vaccination status, or else be killed immediately and tested for rabies in an approved public health laboratory. Officers often misapply this policy. Even in cases of a non– penetrating nip from dog to dog (with no human involvement), law enforcement may insist on impounding the dog for the ten–day quarantine. Regardless of whom the dog bites, there is no law that insists that this impoundment must be at an animal shelter, and therefore nothing prevents a quarantine at home or another location where the animal will be watched for ten days. I recommend practitioners become familiar with their local state rabies quarantine laws to see if guardians of animals have the same option in their home state.

Disputing custody with the local government. Once animal care and control or local law enforcement has taken your client’s animal, there are usually proceedings available to dispute custody. These laws are often located in the state health and safety or food and agricultural codes. There are also local ordinances to contend with. In California, there are reasonable and some may say generous or favorable definitions of “dangerous dog,” which would theoretically work to the dog guardian’s advantage; however, the California Food and Agricultural Code states that local authorities are not bound by the state law and may create a more restrictive regiment of laws defining and “controlling” allegedly dangerous dogs.

Inevitably, the process to regain possession and custody of the animal will be in court either through writ or appeal, usually after some administrative hearing. (Often your client must proactively demand such a hearing.) The battle for custody is not the only litigation your client might face concerning the animal, however. Criminal charges may still be brought against your client for being in possession of a dangerous dog or a dog “at large.” Additionally, a civil complaint may be brought against the guardian of a dog that allegedly bit or attacked; states such as California have strict liability laws. In my practice, I consider the fight for the life and welfare of the animal to be the most import among three types of litigation, especially because home insurance usually covers civil claims against dog guardians.

Custody Battles Between Private Individuals

Animal custody fights between significant others ending their relationship are usually highly emotional and charged with leftover personal issues. Animal custody battles can be pursued in regular civil trial court or through the use of a mediator. If the custody dispute arises during a divorce, the fight can play out as part of the divorce proceedings. I have never practiced family law, but I have encountered cases outside the family court context, independent of a formal divorce proceeding.

Although these custody disputes can be contentious, in my own experience I have found that clients are almost always honest about the care and love that their former partners have given to the animal. Additionally, I have found these former partners to be very reasonable when I explain the need to act for the welfare of the animal and when I question these clients about their true interest in this action. Could it be for personal healing or other unresolved issues and not about animal care? When assessing the best place for the animal, persuasive points to raise with the client may include, but are not limited to, the age of the animal (is it worth subjecting an older animal to the upheavals of adjusting to a new home during the remaining time it has left?), possible separation from friend–animals (would the loss of contact with neighborhood dogs impact the animal’s quality of life?), the stress of long–distance travel (would change of custody require a potentially hazardous flight in the cargo section of an airplane?), and even the nature of the animal–related statutes in the new jurisdiction (are there potentially problematic laws on the books there, such as breed–specific bans?). Creative shared–custody or visiting plans may be possible if both parties are amenable.

Pet custody cases acquire an entirely different character in situations involving domestic abuse. Countless times, victims of domestic violence refuse to leave the abuse situation because they do not want the family companion animal left alone with the abuser, who might retaliate by harming the pet. In 2007 California and Illinois passed legislation to protect animals in such domestic violence situations, and several additional states have since considered similar measures. Such laws allow courts to include pets in domestic violence restraining orders and also to require law enforcement to remove the animals from domestic violence situations when they are removing the victims to a safe home. Because animals are usually not accepted into safe homes, the legislation states that local animal shelters should get involved to take the animals into custody. If your client fits this profile but your state does not have a similar law, please do not hesitate nonetheless to include named animals on restraining orders in family court. There is a place on restraining order applications to include family members, and I have found that courts have not opposed the inclusion of animals if good cause can be shown. In California, I successfully attained restraining orders for animals without issue prior to passage of the state’s domestic violence animal sheltering law.

Third–Party Custody Disputes

Increasingly, I am being consulted by people who want to win custody of an animal but who are not an ex–partner of the animal’s guardian. These people either (1) have possession of the animal and want to maintain custody because they believe the animal’s formal guardian to be negligent or (2) do not have possession of the animal but want to win custody and control of the animal because they believe its formal guardian to be negligent.

An individual in the first category (having possession) may be a babysitter with whom the animal was left by the original dog or cat guardian. In one of my cases, the clients were casual friends of the original guardian, whom they met repeatedly at a local dog park. One day the original guardian asked if this nice couple would mind the animal for a couple weeks. The weeks turned into months and months into several years. When the original guardian came to town, the dog would stay with her. Through the years, the original guardian paid no vet bills, made no telephone calls to check on the dog’s welfare, and sent no money for the dog’s food and support. This was an ideal case to maintain ownership possession of the dog. Only on paper—the official dog license—was this the original guardian’s dog. In these cases, the license means very little, and the actual practice of support and responsibility mean much more. The lifespan of the average dog also factors into custody decisions in such cases. Ultimately in this particular case, the dog guardians who had no license for dog ownership were able to keep the animal, and the suit against them resulted in a dismissal with the couple as rightful owners.

It is more difficult to gain custody and possession of an animal not currently in the client’s possession, but which the client has observed to be neglected by the current guardian. I often get calls from people who observe that the dog in the backyard next door is not fed regularly, is tied to a tree for extended periods of time, or is not walked outside of the kennel. In such cases I recommend that the caller not contact law enforcement immediately, but first go directly to the neighbor in an uncontentious way and see if the neighbor will give the dog to the caller. This is a simple and obvious way to end the animal’s suffering without initiating what could be a long legal battle. If the client is not prepared to take custody, there are numerous agencies and nonprofits that can help place the animal in a loving home. (Note, however, that after taking the animal from the neighbor and having it evaluated by a veterinarian, the client may still wish to report its condition to local animal care and control or law enforcement to prevent the neighbor from adopting another animal in the future.)

If the issue is not resolved peacefully through such an agreement with the current guardian, the next step is calling animal care and control. Custody of the animal may be sought criminally or civilly. In most states, there are criminal anti–cruelty statutes that make the lack of feeding and neglect of an animal a misdemeanor; the California anticruelty statutes also prohibit constant tethering. It is the local law enforcement’s responsibility to report these misdemeanors when brought to their attention. Some sheriffs and local police officers designate the animal care and control department or even the employees of a local nonprofit animal shelter as official delegates to whom they report animal cruelty violations. Once a report has been made, bringing this report to the local district attorney’s attention is imperative.

If custody is sought through a civil rather than a criminal action, the client must file for a restraining order pending the outcome of the civil suit. The immediate restraining order could request the dog be moved from the negligent neighbor’s home to the responsible party’s home; however, courts are more apt to grant an alternative request for an order to move the dog to a non–partisan group such as a nonprofit rescue organization, a foster program, or the local shelter. I always recommend making arrangements with a local nonprofit to sponsor a foster home for the animal rather than sending it to the local shelter. (Shelters can be extremely stressful environments with animals in close quarters, and they tend to be underfunded and understaffed.) If the nonprofit is currently filled beyond capacity and cannot take in any more animals, do not stop there. Usually, if you can find a foster home for the animal and suggest this to the nonprofit, the nonprofit is likely to approve of the location and commit to be the named temporary custodial bailor for the court. Once you have secured the animal in a safe location, you have won the hardest part of the case. The veterinarian expert witness will testify to the neglect and mistreatment of the animal, and your client’s case to gain custody or to remove custody from the neighbor is well on its way.

Christine Garcia is an animal rights attorney, the founder of The Animal Law Office in San Francisco, California ( www.animalattorney.com), and a former commissioner of the San Francisco Animal Control and Welfare Commission legislating for animals. She represents dogs on death row, activists criminally and civilly, and sues companies that exploit animals. She also directs and produces the San Francisco public access television show Ethics and Animals. She may be reached at christine@animalattorney.com.